Hon. Criss Cole, Chairman Opinion No. M-405 

Se,nate Youth Affairs Committee 

Senate of the State of Texas Re: Constitutionality 

Austin, Texas of Senate Bill 

No. ll+Amendments 

to Article 2338-1, 

Sections 5 (a) and 

Dear Senator Cole: 6, V.C.S. 

You have requested the opinion of this office as to 

the constitutionality of certain amendments to Article 

2338-1, Sections 5 (a) and 6, Vernon's civil Statutes. 

These amendments are contained in Senate Bill No. 119 

and relate to felony prosecution (as an adult) of a 

juvenile fifteen (15) years of age or older at the time 

of the commission of a felony and providing for certain 

procedural steps. 

It appears that the intent of Senate Bill No. 119 

is to eliminate the "waiver of jurisdiction and certification" required by the juvenile court under the present 

provisions of Article 2338-1, V.C.S. and to confer jurisdiction over certain juveniles in a district court or 

criminal court for prosecution as in the case of an adult. 

We particularly call to your attention Section 6 (b) 

(1)J of Senate Bill No. 119, which reads as follows: 

(1) "When the district attorney, county attorney, 

or the foreman of a grand jury has reason to believe 

that the welfare of the community requires that 

criminal proceedings be initiated, he shall give 

notice to the juvenile court that the circumstances 

concerning the offense with which the child is 

charged will be presented to the grand jury." 

It appears that this particular section removes the 

rights of juveniles from a civil remedy to a criminal 

proceeding without a waiver hearing before the Court and 

now vests this discretion with the District Attorney, 

County Attorney, or the foreman of the Grand Jury. There 

is no realistic guide lines set down to determine which 

juveniles will be tried as juveniles and which juveniles 

-2004- 
I . 

Hon. Criss Cole, page 2 (M-405) 

will be charged and tried under the criminal laws of this 

State. Thereby, this important unreviewable decision is 

left to prosecuting attorneys or a layman untrained in 

the law. However, even if guide lines had been laid down, 

it is believed that this section would still be inadequate 

to meet the requirements of "due process" and "equal protection" guaranteed under the 14th amendment of the Constitution-of the United States. 

383 U.S. 541, 86 S.Ct. 1045, 

Kent v. United States, 

Gault, 387 U.S. 1, 87 

16 L.Ed 2d 84 (lgbb In 

S.Ct. 1428, 18'L.Ed. 2d 527)!197 

In the Gault case, supra, the Court "...emphasized 

the necessityth&t the basic requirements of due process 

and fairness be satisfied in such proceedings.:: It said 

that the requirements of the juvenile hearing . ..must 

measure up to the essentials of due process and fair 

treatment." "Welfare of the Community" is not a term of 

art and has not been judicially defined, nor is any legislative definition given by the Statute. The constitutional requirement of equal protection of the law requires 

that in the administration of justice no different or 

higher punishment should be imposed upon an individual 

than that which is prescribed to all for like offenses. 

Barbier v. Connolly 113 U.S. 27, 31 (1885). A statute 

relating to crime a:d punishment ' . ..must operate in a 

uniform manner on individuals of the class embraced in 

the law, and must require the same treatment of all who 

are in like conditions and circumstances." 16 Tex. Jur. 

2d 101, Criminal Law, Sec. 8. While a reasonable classification and discrimination between individuals is permissible, in our opinion it is unconstitutional for the 

legislature to delegate to others the unreviewable right 

to choose those individuals for criminal prosecution 

which they determine should be subjected to such prosecution solely on the basis of their interpretation of 

the "welfare of the community," and without benefit of 

any standard or guide line and without a hearing. Such 

a criteria appears vague, uncertain, and lacking in 

measurement by objective standards. It is certainly 

subject to non-uniform application throughout the State. 

The seriousness of the question is highlighted by 

the recent action of the United States Supreme Court, 

on Februarv 24, 1969. - -_ which noted urobable jurisdiction 

and a reed-to hear the ap 

(No. 8623, 161 N.W. 2d 50E 

eal in DeBacker v; Brainard 

183 Neb. 461 (1968) . One 

of the questions presented'is substantially the same 

with which we are confronted here, as shown in Vol. 4, 

- 2005 - 
Hon. Criss Cole, page 3 (M-405) 

The Criminal Law Re 

$ 

orter 4177: "Is a juvenile denied due 

process under the 1 th Amendment by a Nebraska Juvenile 

Code's conferral upon the prosecution of an unreviewable 

discretion as to whether he will proceed against the 

juvenile in juvenile court or under the Criminal Code?" 

We have delayed rendering this opinion in the hope that 

the Supreme Court would establish proper guide lines; 

but in the absence of any opinion to this date, we believe 

the fundamental principles herein stated clearly apply. 

In the recent case of Estes v. Hopp, Superior Court, 

73 Wash. 2d 272, 438 P 2d 2b5 (lgbo) it was pointed out 

by the Court, in considering the,,benificial concept of 

the juvenile court system, that . ..it is a direction 

that the juvenile be offered the benefits of an informal 

hearing at which rules of fairness and basic procedural 

rights are observed..." 

We hold that Senate Bill No. 119, if enacted into 

law, in its present form would be unconstitutional. 

Having directed our attention to Section 6 (b) (1) 

of Senate Bill 119, and having found same to be unconstitutional, we find it unnecessary to consider Section 

5 of Senate Bill 119. 

SUMMARY 

Senate Bill 119, if enacted into law, in 

the form presented to this office amending 

Sections 5 (a) and 6 of Article 2338-1, Vernon's 

Civil Statutes would be unconstitutional. 

C. MARTIN 

General of Texas 

-2006- 
Hon. Criss Cole, page 4 (M-405) 

Prepared by Tom W. Bullington 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Bob Flowers 

Howard Fender 

Neil Williams 

Bob Lattimore 

W. V. Geppert 

Staff Legal Assistant 

Hawthorne Phillips 

Executive Assistant 

-2007-